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Odwołania do chrześcijaństwa w konstytucjach współczesnych państw

Author(s): Grzegorz Maroń,Piotr Steczkowski / Language(s): Polish Issue: 24/2021

The present paper offers a quantitative and qualitative analysis of constitutional references to Christianity. An examination of binding basic laws of individual states allowed the authors to determine the scale of references to Christianity and to systematize and typologize these references. As assumed in the study, “references to Christianity” include both direct mentions of Christian principles, values or heritage as well as implicit ones, i.e., references to God understood in accordance with monotheistic Trinitarianism and to individual Christian denominations, their followers and churches. Due to the fact that Christianity not only has a religious, but also a historical and cultural dimension, its references in the constitutions, in principle, do not deny the ideological impartiality of public authorities or lead to confessionalisation of the state. Neither do they violate the rights of followers of other religions and non-believers. It is an exaggeration to perceive constitutional references to Christianity by non-Christians as allegedly socially alienating and excluding. The constitutional legislator deciding to distinguish Christianity in a constitution is expected to be guided by the will of the sovereign. However, incorporating references to Christianity into basic laws should not serve as a tool of social engineering for proselytic purposes.

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Fetvâhânenin Son Yıllarındaki Fetvâ Faaliyeti ve Müftâ-bih Olan Görüşün Devlet Başkanı İrâdesiyle Değişimi - 378 Numaralı Fetvâḫâne-i ʿÂlî Ecvibe-i Şerʿiyye Defteri Çerçevesinde-

Author(s): Emine Arslan / Language(s): Turkish Issue: 3/2021

The Fatwā-house, which was within the body of Meshihat in the Ottoman Empire, gave answers to the questions posed to it by focusing on the Hanafi sect and the preferred fatwās of this sect for centuries. These questions and answers were also duly recorded. In this study, based on The Record for the Legal Responses of the Supreme Fatwā Office, which is registered at records numbered 378 in the Meshihat Archive of the Istanbul Mufti, one of the records containing the answers given by the institution. It is an attempt to create an imagination about the scope and sphere of influence of the fatwā activity in the last period of the Ottoman Empire. Accordingly, in the last thirteen years of the state, Fatwā-house has been the addressee of questions from individuals, state and private institution directors, societies, ministries and the Grand Vizier. While some of these questions came from the provinces within the Ottoman borders or from the countries that had an administrative ties with the Ottoman Empire, some of them were submitted to the Fatwā-house by the Muslims of other states from the lost lands or simply because the caliphate center was the official fatwā organ. At the records, there is also a record of the questions coming from muslims who are Ottoman citizens but residing in other countries. Looking at the subjects, it was determined that most of the questions were asked about foundations. In addition, the permissibility of obtaining interest by bank facility or depositing money in the bank, the establishment of modern schools and whether the ways to create resources for these schools are permissible, whether teaching in Latin letters is possible, the provision of life insurance, the importance of cleanliness in the fight against cholera, the fight against innovations (bidʻas) in mosques. It is seen that questions on different issues, from issues such as whether the wife of the lost (mafqud) can be separated by the judge or not; to the issues of whether the fulfillment of judgment can be regarded as the end of the judgment or not. As it is mentioned in some fatwā records at the record book, it is obligatory to decide on fatwā and its fulfillment in the Ottoman Empire with the most authentic and preferred view of the Hanafi sect. The last two fatwā questions mentioned above are handled as examples of giving up the act with the will of the head of state, with the preferred fatwâs discussed in this article. It is only possible with the will of the head of state to make a decision with an opinion other than preferred fatwâ or an other opinion out of the sect. According to the first example, some of those of the citizens of other states outside the Ottoman Empire came to the Ottoman lands for reasons like trade etc. and married to Muslim women there and then left them suffering. This was also true for the wives of men who went to wars and did not return. Although the drawbacks of the Hanafi sect's preferred view, that one should wait until the age of ninety, one hundred, one hundred and twenty, or until the death of their peers, were resolved by appointing a regent from other sects, continuity could not be ensured in this practice either, finding people has not always been possible. For this reason, in the time of Shaykh al-Islam Hayri Efendi, a statement of change was prepared and submitted to the will of the sultan. In the issue of whether the signature of the head of state can be counted as the end of the judgment, another subject in which the will of the head of state is applied, the stages of abandoning the preferred view can be followed much more clearly. In the case of the dismissal of the judge or the expiration of the term of office before the execution of the judgment, especially in the distant provinces of the state, in the case of the judge's dismissal or the expiration of his term, according to the preferred view of the sect, which was based on juristic discretion, the closure of the cases took many years. It is seen that the judgment reached by analogy was submitted to the will of the sultan, with an article added to the script regarding the prepared procedure of reasoning, although there is no preferred view since it is the most suitable opinion for the interests of the people and the necessities of the century due to the increase in complaints. Effective from the time it was approved by the head of state, the execution of the sentence is no longer a requirement for the trial to be completed. The changes in the provisions of these matters also show that, although it was important for the Ottoman State to comply with the preferred view of the Hanafi sect - as in the previous Shaykh al-Islams' fatwās in the form of ma'ruzat - it was considered more necessary to look after the interests of the Muslims and different opinions were enacted and put into practice.

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Hadis Rivayeti Bağlamında Fakihlerin Mütevâtir Habere Yaklaşımları

Author(s): Fatih Orhan / Language(s): Turkish Issue: 3/2021

The Book and the Sunnah are the two main sources of Sharʿī science. These two sources are based on narration which requires an absolute certainty, and this makes the reports, especially the mutawātir reports, important for Sharʿī sciences. Many people were involved in the transmission process of the Sunnah and the Book; therefore, Islamic scholars remained loyal to the technical concept “mutawātir reports” which is used in logic and is not open to doubt in terms of credibility. This is particularly important for the science of kalām, which deals with matters of faith. On the other hand, in the science of fiqh, which deals with the practices of the Muslim individuals such as worship and procedures rather than the matters of faith, only the reports that the believer will accept, rather than those that everyone will approve, are sufficient. In this context, as per the science of fiqh, it is sufficient to form a dominant opinion, rather than an absolute certainty as in the science of kalām, for acting upon reports. Some factors, such as the acceptance of conjecture sufficient in the matters associated with fiqh and the low number of mutawātir reports on fiqh matters, also affected the fuqahā’s understanding of certain knowledge. In the context of transmission of the Sunnah, fuqahā partially changed the nature of the concept “mutawātir reports” by going beyond the technical understanding of tawatur. The most important change made by the fuqahā in the nature of mutawātir reports was the inclusion of the phenomenon “sened (chain of transmission)”, which is used to ensure credibility to ḥadīt̲h̲ s, in the understanding of tawatur. So much so that while the number rather than the qualifications of the people who convey the reports is important for the credibility of the mutawātir reports in the science of logic; in the determination of mutawātir sunnah, the number of the narration channels which consist of just and fair-minded narrators was taken as a basis in line with the hadith “Whoever ascribes to me what I have not said then let him occupy his seat in Hell-fire.” Even some methodologists valued the justness and fair-mindedness of the narrators so much that they included the famous reports in the scope of mutawātir reports, even though the first layer was ahad, due to their trust in the narrators in the later layers. However, in technical sense, for mutawātir reports, the qualifications of the narrators or who they are is not important at all. On the contrary, any person from a different religion, sect or disposition can take a role in the transmission of mutawātir reports. However, there is no place for fasiq narrators, let alone non-Muslims, in fuqahā’s concept of sened-centered mutawātir reports. Spiritual mutawātir is one of the subjects affected the most by this new understanding of tawatur based on isnād (reporting the chain of transmission). Normally, spiritual mutawātir is the agreement of the reports, conveyed in different texts by a large number of people who cannot agree on a lie, on a common meaning. However, fuqahā interpreted spiritual mutawātir as ahad ḥadīt̲h̲ s with different chains of sened reaching a certain number and denoting the same meaning. What makes these two reports different is that the number of narrators assures the credibility of reports in the first one whereas the trust in the justness and fair-mindedness of the narrators does in the second. As a matter of fact, it is not possible to talk about such a spiritual mutawātir if the trust in the justness and fair-mindedness of the narrators who convey the ahad reports is damaged. This approach of spiritual mutawātir was used by the mutakallimūn as much as by the fuqahā. However, they used this approach of mutawātir mostly for matters that are evidenced by the Sunnah but not associated with the essentials of religion, such as Shafa'ah (intercession), Hawd al-Kawthar (Pond of Abundance), Ru’yat Allah (seeing Allah), and imams’ being from Quraysh. Thanks to this new concept of tawatur, Islamic scholars included many ḥadīt̲h̲ s that are normally out of the scope of the technical definition of mutawātir reports, in the scope of spiritual mutawātir, and thus provided a credibility to more ḥadīt̲h̲s.

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Dergüzînî Hasan Rıza ve Mecelle’ye Tetimme Mahiyetindeki Eseri

Author(s): Fatih YAKAR / Language(s): Turkish Issue: 1/2022

It is evident that the Ottoman state made radical reforms to overcome the crises it had fallen in various fields, especially since the Tanzimat era. In this context, the preparation and codification of “Majalla-i Ahkām-i Adliyya” is undoubtedly one of the most important events of both the Ottoman legal history and the history of Islamic law. It is not a whole and complete civil law since it mainly covers debts, partly property and judicial /procedural law. “Munākahāt ve Mufārakāt” subjects corresponding especially to the field of family law and the related law articles are not included in Majalla. The work that forms the basis of our paper was written precisely to fill this gap. The work in the nature of translation and commentary of Kadri Pasha’s book, al-Ahkām al-shar'iyya fi al-Ahvāl al-shahsiyya, which is a draft law, was born out of the need for a compact text on family law. It is also a response to the criticisms in his era towards the Islamic Family Law verdict. Its preparation about twenty years before the Family Law Decree is also a helpful clue in analyzing the nature of the work. In addition to translation, Hasan Riza strives to make the marriage contract, the responsibilities of the spouses, divorce, lineage and alimony subjects understandable, and to respond to the criticisms on these issues. When his effort is evaluated together with the religiously referenced commentary he made to Qānūn-i Asāsī , it can be described as the proof of the accuracy of the family law judgment, especially in the classical fiqh literature, and the defense of the conformity of these provisions to intact human nature.

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Examining the Foundation of Islamic Organisational Citizenship Behaviour in Jordanian Organisations

Author(s): Hayel Ababneh,Alex Avramenko,Ahmed Abdullah,Hasan Aleassa / Language(s): English Issue: 1/2022

The purpose of this paper is to examine the role that religion plays in the working lives of Muslim employees, by exploring the influences of Islamic values on employees Organisational Citizenship Behaviour. This is a largely quantitative study conducted in Jordanian organisations. The study introduces a theoretical model drawing parallels between Organisational Citizenship Behaviour and Islamic Work Ethics. The participants, comprising of employees of Jordanian public and private sectors, have been randomly invited to express their views on the possible penetration of Islamic values in the workplace. A Partial Least Squares approach alongside a bootstrapping technique was used to analyse the data. The validity of the measurement model was tested using the Fornell and Larcker criterion. Findings indicate that Islamic values do influence the citizenship behaviour, organisational commitment and loyalty to the organisation of employees. Motivated by religion employees are more likely to adopt discretionary citizenship-alike behaviours in the workplace and be loyal to their organisation. The scope of this study is limited by its primary focus of developing an Islamic perspective within the domain of Organisational Citizenship Behaviour, which utilises the Islamic Work Ethics framework rather than being grounded in Islamic holy texts. This paper not only provides a useful insight into the link between religious motivation, citizenship behaviour, and organisational commitment and loyalty, but also notes the influence of religion in the workplace.

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Osmanlı Hukukunun Afgan Hukukuna Etkisi: Ceza ve Medeni Kanunları Örneği

Author(s): Mehterhan Furkani / Language(s): Turkish Issue: 47/2022

While the Prophet was alive, the companions had consulted to him personally for the solution of every religious matter and to the Qur'an and Sunnah after his death. On the issues that they could not find information in the two sources mentioned, they have made judgments by making ijtihad. Those who were not at the level to make ijtihad obtained information by consulting people who were experts in religious matters. The Muslims who came after them continued to follow the same path. Later, fatwa books were prepared, and these works began to be used in the field of qada as well as fatwa. Although the proposal for the codification of Islamic law was made by Ibn al-Muqaffaʿ (d. 142/759) at a very early period, the act of codification started too late. The legalization activity in the modern western world started at the end of the 18th century and spread to the whole European continent in the 19th century. The Ottoman Empire, influenced by the West, started the act of codification in the modern sense with the Penal Code of 1840. The codification of civil law in the Islamic world started with al-Majalla al Ahkam al Adliyyah (The Ottoman Courts Manual). Hukūk-i Aile Kararnamesi (the Family Law Decree) which was issued in 1917, followed al-Majalla in the field of codification.

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The Effect of Problem-Based Learning Strategies and Direct Learning Strategies on Students' Fiqh Learning Outcomes

Author(s): Lalu Moh Fahri / Language(s): English Issue: 08/2022

This study aims to determine whether there is a positive influence on the use of problem-based learning strategies and the use of direct learning strategies on Fiqh learning outcomes for MA Palapa Nusantara students. The type of research used in this research is quantitative research with an experimental research approach with Quasi-Experimental Design research methods. Data collection techniques in the study used tests, observations, and documentation. In the Experiment class, teachers' teaching activities are in the Good and Very Good categories, and the value of student learning activities is 90.2%. While in the Control class, the value of teacher teaching activities is in the Good and Very Good category, and the importance of student learning activities is 80.8%. The prerequisite test shows that the data is typically distributed and homogeneous. It is concluded that using Problem Based Learning strategies can significantly improve achievement or learning outcomes. In contrast, direct learning strategies cannot substantially improve learning achievement or outcomes.

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Osmanlı Toplum Hayatından Fetvalara Yansıyan Boşama Yeminleri, İhlaller ve Müftülerin Önerdiği Hukukî Çareler (16.-18. Yüzyıllar)

Author(s): Muharrem Midilli / Language(s): Turkish Issue: 2/2022

This article discusses divorce oaths reflected in fatwās from Ottoman social life, oathbreakings and the legal remedies suggested by muftīs for annulment of the oaths. In the Hanafī legal tradition that guided the Ottoman family law, conditional divorce was considered legitimate and accepted as an oath. Divorce oaths made on triple talaq are very binding as they closely concerns the fate of the marriage union. In particular, breaking divorce oaths made on triple talaq does not require expiation like ordinary oaths, but rather requires an irreversible separation. For this reason, it was widely used in various areas of Ottoman social life, and it caused serious family problems. The relevant sections of the fatwā collections contain important data on the usage areas of divorce oaths and the family problems they caused. This article tries to describe the usage areas of divorce oaths and the ways to make them ineffective, based on the fatwas of muftīs who served in Anatolia and Rumelia between the 16th and 18th centuries. These centuries are important in terms of mirroring the formation and expansion of the most important examples of Ottoman fatwā collections and of deeply affecting the subsequent iftā activities. The questions directed to the muftīs shed light on the issues that occur in social life regarding divorce oaths. The answers given by the muftīs provide an idea about the policy followed by the legal system in the settlement of these issues. Many fatwās in the collections indicate that the divorce oath was frequently used by the husband in the marital relationship. In the Ottoman family, sometimes the divorce oath was used by the husband as a means to punish, restrain and discipline his wife. Sometimes, it was a strong promise to his wife that he will stay away from bad habits and violence and be a good husband. Sometimes it amounts to a precaution to prevent his wife from being a victim in case he did not return from his long journey. The divorce oath was used to reinforce personal decisions in various areas of Ottoman social life and to ensure the other party. Religious officials such as muftī, imām and muadhdhin; tradesmen such as bakers, butchers, slave traders and basket makers; ahl-i urf such as taxman, steward, janissary and sipahi and even qādīs took divorce oaths in their professional lives. The divorce oath has functioned as an oral guarantee in debt relations. Ahl-i urf, powerful men and qādīs used the divorce oath as a means of providing obedience for their legitimate or illegitimate demands. Especially divorce oaths made on triple talaq caused marriages to end unjustifiably, practicing temporary halala marriages and meanwhile, this also caused women suffer severe grievances. In fact, the Hanafī legal tradition, developed some remedies to mitigate the destructive effect of divorce oaths. The Ottoman muftīs most commonly used the remedies such as the power of procuration (wakālah), marriage concluded by unauthorized person (nikāh alfudūlī) and to break the oath after divorce and then remarry. The muftīs have issued fatwās that the spouses of those who took the divorce oath not to file a lawsuit regarding a certain issue will not be divorced if they file a lawsuit through the procurator they have appointed. This remedy was used against divorce oaths taken under the coercion of cruel rulers and powerful men. However, the procuration is not useful in legal acts where the laws turn directly to the client, such as marriage. Another remedy frequently suggested by the Ottoman muftīs to nullify divorce oaths is marriage concluded by unauthorized person. A person who has taken a divorce oath not to marry can be married by another person without authorization on his behalf. However, the person who wants to marry with this formula should not give instructions to anyone for marrying off and should accept the marriage with an action such as sending the dowry. Another remedy frequently suggested by Ottoman muftīs is to divorce the wife first, then break the oath and then remarry the ex-wife. The person who wants to use this remedy must first divorce his wife irreversibly, make sure that the oath is broken after the iddah ends, and then remarry his ex-wife again. All these legal remedies suggested by the muftīs alleviated the destructive effect of divorce oaths on the family unity, reduced the halala marriages and protected the people against cruel rulers and powerful men. In addition, they served to balance the legal system, which considers divorce oaths made on triple talaq valid even when drunk or under coercion, in favor of family unity. This article, which is a study of legal history, describes numerous fatwās on which these findings are based and interprets them in the light of the Hanafī legal doctrine.

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PREDSTAVE O BOSANCIMA/BOŠNJACIMA U RANONOVOVJEKOVNOJ OSMANSKOJ ETNOGRAFIJI

Author(s): Emin Lelić / Language(s): Bosnian Issue: 71/2022

It is a well-known truism that Bosnians played an important role in Ottoman history, especially during the so-called Golden Age of the Ottoman Empire. This has long engaged Bosnian Orientalists, who have unearthed and translated a veritable plethora of Ottoman documentation and manuscripts dealing with Bosnia and Bosnians during the Ottoman period. This article attempts to add to that long scholarly tradition by sketching out how Ottoman ethnography perceived Bosnians and the historical context in which these perceptions were embedded.

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19. Yüzyılda Livane Halkının Hukukî Talep ve Davaları (1800-1861)

Author(s): Zemzem Yücetürk / Language(s): Turkish Issue: 16/2022

The Ottoman Empire had many different ethnic elements. The state in question has managed to manage these different groups in terms of religion, language, race and culture for centuries with a tolerant administration and understanding of justice originating from the religion of Islam. It has provided the citizens of different religions with the opportunity of judgment, administration and administration according to their own religions. In local administrations, he allowed non-Muslims to be governed by their own clergy as long as they did not rebel against the state. Although there are congregational courts, it also gave the aforementioned subjects the right to bring their cases to the shari'a courts if they wished. In line with this right, non-Muslims often brought their cases to the sharia courts. In the study, the legal demands and lawsuits of the people of Livane, from the beginning of the 19th century to the end of the reign of Sultan Abdülmecit, were handled separately as non-Muslims and Muslims. During this period, non-Muslims had requests and lawsuits regarding the church, estate, permission, receivables, conversion and denomination movement, appointment of proxy, executive director, consul and murder. Those of the Muslims are claims and lawsuits about inheritance, family law, permission, debt, theft and murder. As it is understood from the documents, both Muslims and non-Muslims conveyed their cases to Istanbul with petitions and demanded that orders be sent to the administrators of the sanjak to which Livane was affiliated, for the settlement of their cases in the shari'a courts. If it was not possible to resolve the case, they requested that the defendants be summoned to Istanbul and held their hearings. The state dealt with the complaints and demands of all the people and sent orders to the local administrations to solve the cases and to fulfill the requests. With the request to report the results of the cases to Istanbul again, the follow-up of the results was also carried out. As it can be understood from the documents, non-Muslims had their own courts and conveyed their cases to Istanbul with petitions. The state also approached the wishes of the people positively, without discriminating between Muslims and non-Muslims. Although the Ottoman Empire responded positively to the requests of non-Muslim subjects, it was understood from a document belonging to the period that these subjects did not behave tolerantly towards each other. When a non-Muslim changed his sect and got married to an Armenian nation, the Catholic nation imposed a fine on this person.

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CRTICE IZ MOSTARSKE SVAKODNEVNICE (KROZ DOKUMENTE KOTARSKOG ŠERIJATSKOG SUDA U MOSTARU U PERIODU AUSTROUGARSKE UPRAVE)

Author(s): Hana Younis / Language(s): Bosnian Issue: 5/2022

his paper, based on the material of the district sharia court in Mostar, depicts the way of life of the inhabitants of the city and surrounding places. Although only fragmentarily preserved, this material with its colorfulness indicates the most important aspects of everyday life and especially family problems. Documents show that qadi was a key witness of all life events, from the registration of birth to the registration of the death, represents the last hope in the protection of rights during family disputes. his especially refers to the issue of marriage, divorce but also inheritance, giving power of attorney, declaring adulthood, and checking “moral” behavior. All these questions are crucial for understanding the broader picture of everyday life and the change that occurred with the arrival of the Austro-Hungarian monarchy. he issue of the position of women and their rights during divorce and personal property management is especially emphasized. Does detailed analysis leads to the dilemma of how realistically the position of women has been presented in historiography so far?

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UNPACKING THE TALIBAN: A HYBRID OF DELINQUENT SANCTIMONY

Author(s): Ahmad Shayeq Qassem / Language(s): English Issue: 1/2023

Since its inception in 1994 as an organised group or network with a claim on rulership of the country, the Taliban has been generally described as an “Islamic movement” committed to the implementation of sharia in Afghanistan. Such description may accord well with the group’s professed objective but reveals itself reductive at best and misleading otherwise on closer scrutiny. This article argues that the “Taliban” represents a hybrid phenomenon that deploys religious and political narratives just as it deploys organised crime in pursuit of maximum power and profit.

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İslâm Hukukunda Kadının Diyeti Meselesinin Fıkhî Yönden Değerlendirilmesi

Author(s): Fatiha BOZBAŞ / Language(s): Turkish Issue: 2/2022

Women are more visible in economic and public life than before. This visibility has led to a change in the social perspective towards women in recent centuries. Some provisions regarding women, which are generally accepted in classical fiqh teachings, have started to be discussed again. It has also started to be seen that the existence of different perspectives has emerged within these discussions. The issue of the amount of the victim's diya, which is included in the field of Islamic criminal law, is one of the issues that has been discussed on a different ground recently in this context. The view that the diya penalty of a woman is half of that of a man has been generally accepted and practiced since the early periods of Islam. However, the issue, which has come to the agenda again with the conferences and articles written recently, has formed the basis of heated disputes. Considering the importance of the legal aspect of the subject, it is aimed to deal with the issue in detail in this study. Then, the evidences of the critical view that "the diya of a woman is the same as that of a man" will be explained. Finally, the points of disagreement on the subject will be determined, and a result will be tried to be reached by considering the opinions and evidences mentioned in the general framework.

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İSLAM HUKUKUNDA VAKFIN KARAKTERINI DEĞIŞTIRMEK. HACI HODABARDI VAKFI ÖRNEGI

Author(s): Atavulla SAVUR / Language(s): Arabic Issue: 58/2023

The issue of changing the form of the endowment is an old issue that the ancient jurists spoke about. Some of them looked at the issue with a view of interest, and if they saw the interest, they permitted it, whether the endowment was an investment or utilitarian endowment. The purpose of the endower of the investment endowment is to provide the revenue for the endowment, and changing it from one form to another does not take him out of the circle of investment, and for this there is no need for stagnation and strictness. As for the purpose of the endower of the usufruct endowment, the endowment is to benefit the endowment from the original endowment, and to convert it into an investment that takes it out of the circle of benefit, and for this it must be strict in changing it more than changing an investment endowment from one form to another. Hajj Khoda Bardi endowment is a residential endowment located in Al-Masfalah neighborhood in Makkah AlMukarramah, approximately 600 meters from the Holy Kaaba. It was endowed by Hajj Khoda Bardi from the state of Khotan, East Turkistan in 1933 AD. Since 2008, the endowment has been transformed into an investment endowment. Al-Nazir rented a building for the benefit of the endowment, and the beneficiaries lived in it. The research deals with the ruling of this conversion in terms of jurisprudence.

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LIČNOST I NASLIJEĐE PROFESORA FIKRETA KARČIĆA

Author(s): Amila Svraka-Imamović / Language(s): Bosnian Issue: 93/2023

Professor Fikret Karčić of the Faculty of Law of Sarajevo University was a world-renowned scholar in the field of comparative legal history. He was a brilliant intellectual of encyclopedic knowledge, an expert distinguished throughout the world, and a professor who made contributions at universities in Bosnia and Herzegovina, Turkey, Malaysia, Norway, and the United States. His principal academic interest were: the studies of the history of the Sharia law and Islamic institutions of Bosnia and Herzegovina, reformist movements in Islam, and Muslims of the Balkans, the works of Professor Karčić have been translated to English, German, Arabic, Albanian and Turkish languages. He actively participated and was a witness to many events in the recent history of Bosnia and Herzegovina. Professor Fikret Karčić passed away on March 16th, 2022.

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FOND BEJTUL-MAL ISLAMSKE ZAJEDNICE U BOSNI I HERCEGOVINI: DOSTIGNUĆA I PERSPEKTIVE

Author(s): Ahmed Purdić / Language(s): Bosnian Issue: 94/2023

The article presents a historical review of the conception and development of the funds of Baytul-mal with a particular accent on the collection and distribution of zakat and sadakatu-l- fitr amongst the Muslims of Bosnia and Herzegovina in the past hundred years. It offers a concise insight into Sharia- legal foundation of this practice within the framework of the Islamic Community of Bosnia and Herzegovina. It also gives answers to the most frequent objections of jamaats in this regard and it points out the challenges facing the Islamic Community in the process of collection and distribution of zakat and sadakatul fitr. Finally, it presents the most significant results of the field research which was carried out for the purpose of analysis of the issue in concern.

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РЕЦИДИВЪТ В РИМСКОТО НАКАЗАТЕЛНО ПРАВО

Author(s): Mariagrazia Rizzi / Language(s): Bulgarian Issue: 1/2023

It has long been doubted whether the Romans knew the notion that we call recidivism in modern terminology, for which the Latin language lacks a nomen. However, the sources attest cases of aggravation of the punishment for those who repeat the same offence after a previous sentence or a coercive sanction. It is difficult therefore to deny the existence of the ‘thing’ that in the Roman legal system is closely related to the forms of procedure. It will be the jurists, especially in the Severan age, to identify the structural elements of the figure and the ratio for the harsher punitive treatment of the recidivist. The tendency in the Late Imperial age to consider that of recidivist a real subjective condition opens the way to the subsequent developments of modern criminal legal science.

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SARAYBOSNA’DA İSA BEY ZAVİYESİ HAKKINDA BAZI BELGELER (II)

Author(s): Hatice Oruç / Language(s): Turkish Issue: 72/2023

There is no archival record connecting the zawiya founded by Gazi Isa Bey in Sarajevo (1462) to a dervish order (tariqat) till the end of the 18th century. Then, suddenly, with the appearance of Sheikh Osman Dede, Isa Bey’s zawiya began to be mentioned alongside the Mevlevi tariqat. This change took place when Sheikh Osman Dede, one of the dervishes of the Hacı Sinan Kadirî tekke in Sarajevo, became the sheikh of the Hacı Mahmud Mevlevi tekke and claimed that it was actually Isa Bey’s zawiya. At first, he convinced the authorities that the two lodges were one and the same, and even repaired the Mevlevi tekke with the income of the waqf of Isa Bey’s zawiya. He then further claimed that the waqf’s tawliyat (the right to manage the waqf) belonged to the sheikhs of the zawiya based on the waqf’ regulations, and took over the tawliyat of the waqf and appropriated the waqf’s property. Thus, a tawliyat lawsuit that would last for many years arose between the trustee of the zawiya foundation represented by Osman bin Mustafa residing in Skopje, from the lineage of İsa bey, and the new trustee of the foundation represented by Sheikh Osman Dede. The documents presented in this case reveal that certain aspects such as whether or not Isa Bey’s zawiya is really Mevlevi, which side has the right to the tawliyat of the zawiya’s waqf, and the conditions of endowment in the foundation charter (waqfiya) etc., have been questioned. Various types of documents found in the Ottoman Archive (Ottoman Archive of the Presidency of the Government - BOA) and in the Archives of the General Directorate of Waqfs in Ankara that shed light on the claims and events related to Isa Bey’s zawiya and its waqf starting from the time Sheikh Osman Dede became a Mevlevi sheikh, constituting the first part of this study, have already been published under the title “Several Documents About Isa Bey’s Tekke in Sarajevo (I)”. In this study, the documents from the Sarajevo court registers (sharia sijjils) held at Gazi Husrev’s Bey Library in Sarajevo, will be discussed. In a way, this study implements the documents already discussed in the earlier publication. These new documents that question the generally ac-cepted claim that Isa Bey founded the zawiya as a Mevlevi and reveal the name of Haci Mahmud as the founder of the Mevlevi tekke are of extreme importance and may completely alter the history of the tariqats in Sarajevo all together. These documents are also of great importance not only for the research of the waqf institutions, but also for the research of legal history through the prism of the institution of the qadi and the functioning of the court.

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ISLAMSKA CIVILIZACIJA I TEOLOŠKI UZROCI DRUŠTVENE NERAZVIJENOSTI: JEDNO TRADICIONALISTIČKO ČITANJE MODERNISTIČKIH TEZA

Author(s): Asim Delibašić / Language(s): Bosnian Issue: 24/2023

This paper analyzes the theory of Islam as a religion that could have formed a rationalistic civilization, based on scientific progress, individualism and democracy. One of the representative studies on this topic is the work of Mustafa Akyol Reopening of Muslim Minds, in which the author uses the method of counterfactual analysis, posing the fundamental question: what would Islamic civilization look like if in the Sunni majority had not prevailed Ash’ari theology, but rationalistic, Mu’tazili theology? Although it could be said that the author of this study does not err when he concludes that Ash’ari occasionalism stopped the development of science in Islam, he nevertheless errs when he claims that the doctrines of voluntarism, predestination, and uncreatedness of the Qur’an, were generators of injustice in Islamic society. In this paper we tried to analyze the metaphysical foundations of these doctrines, re-examine the validity of the hypothesis about their harmfulness, and re-examine whether the observed harmful effects come from Islamic tradition or from the more recent attempts of modernization of Islam.

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Cessâs’ın Hurma Nebizi ile Abdest Alma Meselesine Dair İstidlalleri: Bir Ebû Hanîfe Savunuculuğu Örneği

Author(s): İbrahim Özpolat / Language(s): Turkish Issue: 2/2023

This research aims, first of all, to establish that Abû Hanîfa's (d. 150/767) positive view on the issue of performing wudû’ with nabîdh of date is correct, and then to reveal Abû Hanîfa's dalîls on this subject. The issue of wudû’ with nabîdh of date is controversial among early Hanafî jurists, and the jurist who expressed a positive opinion on this issue is Abû Hanîfa, the founding imam of the madhhab. The opinion that wudû’ can be performed with nabîdh of date is the strong opinion of Abû Hanîfa mentioned in zâhir al-riwâya. The riwâya reported by Nûh bin Abi Maryam (d. 173/789) stating that Abû Hanîfa reneged on this view is not strong enough to oppose the view in zâhir alriwâya. For this reason, it is not a correct approach to ignore the view in zâhir al-riwâya based on this riwâya. As a matter of fact, Abû Hanîfa's view of zâhir al-riwâya is conveyed in many of the classical Hanafî texts such as Mukhtasar al-Karkhi and Mukhtasar al-Tahâwî. Although the majority of Hanafî jurists preferred the view of Abû Yûsuf (d. 182/798), a significant group of Hanafî jurists such as Jassâs (d. 370/981), Kâshânî (d. 587/1191) and ‘Aynî (d. 855/1451) He supports Abû Hanîfa's view. Therefore, there are two views on the issue in Hanafî fıqh. In the literature, the dalîls of Abû Hanîfa's view is not available as a whole in a single source, but is scattered in many Hanafî fiqh sources. The Hanafî jurist Jassâs is the one who deals with the mentioned dalîls in the most comprehensive way in his many works. For this reason, the subject was examined by focusing on Jassâs's dalîls. Jassâs' istidlâls regarding the issue of wudû’ with nabîdh of date also mean defending Abû Hanîfa against other Hanafî jurists such as Abu Yusuf and Imâm Muhammad (d. 189/805). Jassâs' insistent attitude on this issue and his passionate counter-answers prove how much he deserves the title of defense. For the relevant determination, Hanafî fiqh classics are centered. Because the jurists who argue that wudû’ can be made with the nabîdh of date are among the Hanafî jurists. Then, the positive and negative approaches of the jurists about the nabîdh of date are given. Starting from the early Hanafî jurists, the views of the sahâbîs, the tâbi'ûn and many later jurists on the subject are included. The approach of the four madhhabs of fiqh is also examined in this section. Then, the istidlâls of Jassâs, which is the main subject of the research, were emphasized. It is seen that Jassâs' istidlâls have three main pillars: âya, hadîth and idjma. As a âya, the 6th âya of the sûra of Mâida, as a hadîth, the hadîth of ‘Abd Allâh bin Mas'ûd (r.a.) and as a idjma, the the sahâbîs idjma tries to showas references. The most controversial dalîl is undoubtedly the hadiths of Ibn Mas'ud (r.a.). Jassâs opposes those who claim that the hadîth is da‘îf and discusses the hadîth with its detailed tarîks and argues that this hadîth is sahîh.

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